Something is inherently wrong and unfair if decades after intervention by the security forces, in the most difficult of circumstances and at great cost, their actions are subjected to judicial scrutiny at the behest of relatives of militants and insurgents responsible for violence-if the judiciary persists with its actions, it is time the Army top brass took a close hard look at this issue. They owe it to their command to cease all participation in counter-insurgency operations and withdraw the Army to the barracks forthwith, even if such an action may result in effecting our territorial integrity. If that were to happen, the higher judiciary must be held responsible for their actions and brought to account. While they have their rights as constitutional authorities, they too have responsibilities as citizens of this country, especially in dealing with those circumstances where its integrity may be at stake

Human rights and the military Thursday, 15 September 2016 | Deepak Sinha  Human rights and the military Daily Pioneer.com Something is inherently wrong and unfair if decades after intervention by the security forces, in the most difficult of circumstances and at great cost, their actions are subjected to judicial scrutiny at the behest of relatives of militants and insurgents responsible for violence In an earlier article in The Pioneer, ‘When judges become Generals’ (July 12), I had been fairly critical of the Supreme Court Bench of Justice Madan Lokur and Justice UU Lalit on some of its interim directions in the case of alleged extra-judicial killings in Manipur. While it is nobody’s case that human rights abuses must be condoned, some of the controversial directions of the Bench appeared to have been arrived at due to a lack of understanding on the part of the judiciary with regard to the extraordinary circumstances under which the Army is required to function in States or territories impacted by insurgency. However, listening to the amicus curiae in this case, eminent lawyer, Menaka Guruswamy, during a panel discussion, cleared my illusions and clarified my understanding of the manner in which the judiciary views the subject and the reasoning behind the interim judgement. Among others, she made three critical points. First, the Government had done a shoddy job of defending its actions, especially with regard to providing documentation in support as evidence. As per Guruswamy, the Government was unable to produce a signed copy of the gazette notification on promulgation of the Armed Forces (Special Powers) Act (AFSPA), for perusal by the court. Second, the Justice Hegde Commission, set up by the Supreme Court, to inquire into a few random allegations brought before it, had concluded that there was sufficient evidence against members of the security forces suggesting wrongdoing. Last, Guruswamy suggested that despite the state being declared disturbed and AFSPA being promulgated by the competent authority, the Army was only there to provide ‘aid to the civil authority’, and its actions were bound by existing regulations and guidelines, laying down how it should respond in such situations. It is no secret that record-keeping in this country verges on the pathetic. Thus, it comes as no surprise that the Government is unable to provide the court with a copy of a notification issued in the 1950-1960’s. In fact, had it done so, it should deserve a medal. More importantly, lawyers and other Government officials handling the case have little knowledge or interest in the specifics and are far removed from it — both in terms of time and distance. One would not be incorrect in suggesting that for them it is just a routine job. Those from the security forces under scrutiny for their actions, have a different set of limitations haunting them. They were junior officers or men then focused on their mission with limited knowledge of the intricacies of law, operating in a life threatening environment. The allegations of misconduct they face, pertain probably to one operation among numerous others they undertook during their tenure. Subsequently, a decade later, they are hardly in a position to recall the exact details of that particular operation in a court under oath. Most damningly, as in all bureaucracies, now that they have been individually identified, the establishment will waste little time in firewalling itself from adverse consequences that future judgements may incur to ensure that others up the hierarchy are not brought into the ambit of the case. The Justice Hegde Commission consisted of very eminent people, including a former Director General of Police. However, a perusal of its report clearly shows that it suffered from a grave infirmity that has adversely impacted the credibility of its findings on which the Supreme Court directions are so dependent. This Commission lacked the expertise that could have enabled it to understand the situation prevailing in Manipur and ground level knowledge of what insurgency environment involves and the challenges faced by security forces personnel conducting counter insurgency operations. Thus, some of the conclusions it draws can at best only be termed as completely bizarre. For example, in the case of Azad Khan (case number one), it concluded it was a false encounter because “twenty security forces personnel, armed with sophisticated weapons could not have disabled or apprehended the victim was not believable and that they were afraid as the youths fired at them is also doubtful since they were equipped with bullet proof jackets”. Moreover, “the bullets that entered the victim's body establish that he was not shot while facing the security forces.” Also, “the fact that Azad Khan was hit by six or seven bullets while no personnel of the Security Forces was even injured shows that disproportionate force was employed…” The Commission seems totally unaware of the very basics of counter-insurgency procedures involving a raid to apprehend insurgents. The security forces team would have divided in smaller detachments, most of which would spread out and cordon the village to prevent escape, while one odd detachment would be tasked for searching and apprehending the militant. Thus, the chances of the militant being confronted by 20 security forces personnel, as suggested by the Commission, seems unlikely. During the firefight, he would have been confronted at best by three or four personnel and would have fallen to an odd burst or two fired at him in return. In such circumstances to expect troops to check which way he was facing before firing at him or for that matter searching for shell casings that may have been expended seems just plain silly and dangerous, given that militant response to the encounter is difficult to gauge. Moreover, the Commission may change its opinion about the issue of “being afraid” if they took participated in a simple exercise of wearing a bullet proof jacket and getting somebody to shoot at them. They would then be made aware of exactly of how vulnerable an individual is despite wearing a jacket. There are many such infirmities in their report that show it to be amateurish lacking any credibility. The intervention by the Army in an insurgency environment falls under the ambit of ‘aid to civil authorities’ as do all actions in support of the civilian Government, be it assisting in a natural disaster or controlling a riot. However, to equate the actions of the Army in an insurgency environment, which is comparable to civil war by the time the Army intervenes, to the manner in which it tackles a riot is verging on the ridiculous. Riots involve handing over of the situation to the Army for a limited duration till it brings the situation under control. Insurgencies last for years and the civil administration, including the criminal justice system, are defunct by the time the situation is handed over to the Army. In practical terms, the state has no lien on the affected territory until the Army initiates robust measures to wrest control from insurgents and enable the state machinery to recommence functioning. There is, thus, something inherently wrong and unfair if decades after intervention by the security forces in the most difficult of circumstances and at great cost, their actions are subjected to judicial scrutiny at the behest of relatives of militants and insurgents responsible for the violence and mayhem in the first place. Today, the judiciary has focused on Manipur and it will only be a matter of time before its focus swings to Kashmir. In such circumstances, if the judiciary persists with its actions, it is time the Army top brass took a close hard look at this issue. They owe it to their command to cease all participation in counter-insurgency operations and withdraw the Army to the barracks forthwith, even if such an action may result in effecting our territorial integrity. If that were to happen, the higher judiciary must be held responsible for their actions and brought to account. While they have their rights as constitutional authorities, they too have responsibilities as citizens of this country, especially in dealing with those circumstances where its integrity may be at stake